Indian Laws on Plea-bargaining

Introduction of Plea-Bargaining in India: The Supreme Court was very much against the concept of Plea Bargaining before its introduction. In State of Uttar Pradesh vs. Chandrika, the Supreme Court of India held that it is settled law that on the basis of Plea Bargaining court cannot dispose of the criminal cases. The court has to decide it on merit. Despite strict opposition by the Supreme Court, the Government found it comfortable to introduce this concept. Long list of pending cases before the Criminal courts was cited as the reason for the enactment of this provision. The Law Commission in its 154th report recommended the introduction of ‘plea bargaining’ as an alternative method to deal with huge arrears of criminal cases. This recommendation of the Law Committee finally found a support in Malimath Committee Report.

In India, the system of plea bargaining is in its experiment stage. The system was introduced as a result of criminal law reforms introduced in the Criminal Law (Amendment) Act, 2005 (Act 2 of 2006). Section 4 of the Amendment Act introduced Chapter XXIA to the Code having sections 265 A to 265 L which came into effect on 5th July, 2006.

Applicability: The new chapter in the statute, Chapter XXI A, allows plea bargaining to be used in criminal cases where: 

1. Plea-bargaining can be claimed only for offences that are penalized by imprisonment below seven years.

2. If the accused has been previously convicted of a similar offence by any court, then he/she will not to be entitled to plea-bargaining.

3. Plea-bargaining is not available for offences which might affect the socio-economic conditions of the country.

4. Also, plea-bargaining is not available for an offence committed against a woman or a child below fourteen years of age.

Section 265 A deals with applicability of the Chapter XXIA. Benefit of Plea bargaining can be extended in two circumstances (i) if a report is forwarded bya Station House Officer of a Police Station after the completion of investigation to the Magistrate and (ii) if the Magistrate has taken cognizance of an offence on a complaint under S. 190 (a) followed by examination of a complainant and witness under S. 200 or S. 202 and issuance of process under Section 204 which means, after commencement of proceedings upon a private complaint. Under S. 265 L the provisions of plea bargaining is not applicable to any Juvenile or Child as defined under Juvenile Justice (Care and Protection of Children) Act, 2000.

Procedure: As per S. 265 B, the process of plea bargaining starts with an application from an  accused before the trial court giving a brief description of the case with an affidavit sworn by the accused affirming the genuineness of application as voluntarily submitted. Upon receipt of application, the trial court has to issue notice to prosecution, either to public prosecutor or to complainant in S. 190 (a) cases and also to the accused intimating the date of hearing of application. The examination of the accused shall be done in-camera, avoiding the presence of other parties. If the Court feels, after examination of the accused, the application is involuntarily submitted or the accused is not eligible for plea bargaining, the Court has to drop the proceeding but, if the Court is satisfied with the application filed it will ask the Public Prosecutor and the accuse to work out mutually satisfactory disposition of the case. After hearing the parties the Court shall pronounce the award, which may include:

a. Compensation to the victim by the accused including the expenses incurred during the pendency of the case and releases the accused on probation of good conduct.

b. May sentence the accused to half of such minimum punishment as provided for the offence.

Judgement given by the Court shall be final and no appeal shall lie in any Court against such judgement except by the special leave petition under Art 136 for writ petition under Articles 226 and 227 of the Constitution to the High Court.

Cases on plea-bargaining:

(i) MUMBAI: A magistrate's court on 25th may, 2011 accepted a plea bargain and convicted the four foreign nationals-who were accused of stealing diamonds worth Rs6.6crore at an international jewellery show last year-to 21 months rigorous imprisonment. The maximum punishment in such cases is usually seven years. The foreigners, three Mexicans and one Venezuelan, were convicted by the 37th Esplanade court, after they had pleaded guilty to their offence and sought a plea bargain under the provisions of the Criminal Procedure Code, Times of India report.

(ii) PANAJI: The high court of Bombay at Goa recently on 13th July, 2011 held that a court should mandatorily follow the procedure prescribed under the Criminal Procedure Code (CrPC) while deciding an application filed by an accused for plea bargaining, and set aside an order passed against a foreigner by a judicial magistrate first class court in a case of overstaying. Okeke Nwabueze Nnabuike, a Nigerian national, had approached the high court challenging the order passed by the JMFC court. He had filed an application under Section 265-B of CrPC for plea bargaining before the JMFC. On the basis of no objection given by the assistant public prosecutor and investigating officer, the JMFC court passed the order, Times of India report.

(iii) MUMBAI: The move of Pakistani-American David Headley, charged with conspiracy in the Mumbai terror attacks, to plead guilty before a US court to bargain for a lighter sentence. Forty nine-year-old Headley, an LeT operative arrested by FBI on October 2009, has moved the plea bargain at a court in Chicago. Headley faces six counts of conspiracy involving bombing public places in India, murdering and maiming persons in India and providing material support to foreign terrorist plots and LeT; and six counts of aiding and abetting the murder of US citizens in India. Times of India report on 18th March, 2010.

Plea-Bargaining: its advantages and disadvantages

Significant feature of method of Plea-Bargaining is that it helps the Court and State to manage the case loads which shows incompetence on the part of procedural law. It carries some advantages along with some disadvantages. Some of the advantages are as follows:

(i) It helps in reduction of criminal cases.

(ii) It helps in disposal of cases quickly especially when the courts are overloaded with cases

(iii) Right to speedy trial is one of the constitutional obligations

(iv) In petty cases it saves the accused from harassment and unnecessary expenditure and saves a lot of court’s time and energy. It will give more time for the courts for disposal of serious cases.

(v) It is an absolute necessity. The entire judicial system would grind to a halt otherwise.

(vi) Judicial control, albeit distant, of the contractual process may eventually ensure a greater measure of “Justice”.

(vii) The defendant may have a feeling of participation, and may not resent the sentence as much

(viii) By his plea-bargain; the defendant is ensuring prompt and certain application of punishment. This accord with the Bentham’s theory of punishment.

(ix) Acknowledgement of guilt, as a “confession” is the first step towards rehabilitation. Recognition of the crime committed is good for the soul.

(x) A guilty plea may actually create more scope for judicial flexibility in sentencing and may in appropriate cases prevent a “criminal” from taking a career of crime.

Disadvantages are as follows:

(i) The “confession” involved in plea-bargaining is no more a sign of “rehabilitation” than is a reduction in price by a used-car salesman.

(ii) It creates a feeling that Justice is no longer blind, but has one eye open to the right offer.

(iii) Prosecutors and police, foreseeing a bargaining process, will overcharge the defendant, much as a trade union might ask for an impossibly high salary.

(iv) It is inherently unfair, assuming you have two defendants who have engaged in the same conduct essentially similar circumstances, to treat one more harshly because he stands on his constitutional right.

(v) In a bargain situation, the whole truth of the matter might not come

(vi) Police moral can suffer when difficult and even dangerous police work is nullified in a bargain.

(vii) It may create contempt for the system within a class of society who frequently come before the courts.

Conclusion:

The introduction of plea bargaining is a shortcut aimed at quickly reducing the number of under-trial prisoners and increasing the number of convictions, with or without justice. It is undoubtedly a disputed concept since few have welcomed it while others have abandoned it. The consequences will be felt most obviously by the countless numbers of poor languishing in the country's prisons while awaiting trial.

Anwesha Bhattacharjeee

3rd year, Haldia Law College